High Court Reviews Major 1976 Rights Ruling

Washington--A lawyer for a black credit-union employee told the U.S.
Supreme Court last week that its 1976 decision that a
Reconstruction-era law bars private schools from denying admission to
minorities has become too widely accepted to be overturned.

According to the lawyer, Julius LeVonne Chambers of the naacp Legal
Defense and Educational Fund Inc., the Congress and the public "accepts
and wants to perpetuate" the Court's ruling 12 years ago in Runyon v.
McCrary that Section 1981 of Title 42 of the U.S. Code bars private as
well as governmental acts of discrimination.

Even if the Justices now believe that their ruling was wrong, he
added, the legal doctrine that precedents should be abandoned only for
good cause has "foreclosed" the option of overturning it.

A lawyer for the credit union countered, however, that the federal
law was never intended to extend to private acts of discrimination. It
is "not appropriate" for the Court, he said, to "step in and fill in
those gaps" that the Congress has chosen not to fill.

The forthcoming decision in the case argued last week, Patterson v.
McLean Credit Union (Case No. 87-107), could signal a new direction by
the Court in the area of civil rights.

Originally, the Patterson case questioned only whether Section 1981
protected minorities against racial harassment on the job. The 1866 law
states that all persons have the same right "to make and enforce
contracts ... as is enjoyed by white citizens."

After the case was argued for the first time last spring, the
Justices voted 5 to 4 to return it to their dock4et for a second round
of arguments on the more fundamental question of whether they erred
when they ruled in Runyon that the Congress intended the law to apply
to private schools and other nongovernmental entities as well as to
states.

Because neither side in the case had disputed the Runyon ruling,
many legal observers interpreted the move as a signal from the Court's
conservative bloc that it was prepared to reconsider a host of liberal
decisions issued during the tenures of Chief Justices Earl Warren and
Warren E. Burger.

During last week's arguments, Mr. Chambers insisted that the
legislative history of Section 1981 "shows that Runyon was correctly
decided."

"Congress saw free blacks being harassed in the workplace," he said.
"This sort of case is typical of what Congress wanted the law to
reach."

That assertion prompted Associate Justice Antonin Scalia to ask Mr.
Chambers whether he knew when the first Section 1981 case alleging an
act of private discrimination was filed.

"Isn't that important?" the Justice asked. If discrimination in
private employment "was as big a problem as you say it was," he said,
''wouldn't there have been a flood of suits almost immediately?"

Mr. Chambers responded that there were many reasons why blacks may
have been reluctant to assert their rights under the law, citing
difficulty in obtaining lawyers and fear of reprisals by white hate
groups. ''The fact that you cannot find a case" during the law's early
years ''is not dispositive," he said.

Falling back to a second line of defense, Mr. Chambers contended
that the doctrine of stare decisis--which holds that courts should be
slow to abandon principles announced inprior rulings even when they
suspect that those ruling are incorrect--should control the outcome of
the case.

"In this case, I say that the original decision was right," he said.
"But even if you have a question, what has transpired after Runyon has
foreclosed this Court from reversing that decision."

Mr. Chambers noted that the Runyon ruling provided "the foundation
[and] the building blocks" for several civil-rights laws passed in its
wake.

"I don't know what else Congress can do to tell the Court that it
endorses your decision and wants to build upon it," Mr. Chambers
said.

"To reverse Runyon under these circumstances would fly in the face
of Congress's effort to use your decision to eliminate both public and
private acts of discrimination," he said.

The credit union's lawyer, Roger S. Kaplan, contended that Section
1981 "was designed for the limited purpose" of protecting recently
freed slaves from state laws that deprived them of the right to enter
into contracts.

"Now it is being used as a general-purpose anti-discrimination
device," he continued, adding that the Runyon ruling "cut the statute
loose from its roots and its legislative history."

"The legislative branch must take control, must provide the
remedies," he said. "The problem I see is that this decision threatens
the appropriate allocation of authority to the Congress to deal with
these situations."

"Why should we go back and change the decision we made?" asked
Justice Scalia.

"Because it intruded on the prerogatives of Congress," Mr. Kaplan
answered.

"If that's all you have, then you have nothing," the Justice shot
back. "That happens all the time when we interpret a statute
incorrectly."

Later in the hearing, Mr. Kaplan noted that employees would continue
to be protected against racial bias by Title VII of the Civil Rights
Act of 1964 and other federal civil-rights laws if the Runyon decision
were overturned.

That remark prompted Associate Justice John Paul Stevens to question
what protections against bias would remain in education and other
nonemployment areas.

"In areas left untouched by Title VII and the Fair Housing Act,
those themselves are decisions by Congress not to act," Mr. Kaplan
said. "Congress was aware of the problem" of segregation in private
schools that was raised in Runyon "but it chose not to act. It is
appropriate for this Court to respect that decision."

Later, Justice Stevens questioned whether it would be proper for the
Court to extend the coverage of Section 1981 to private schools but not
to other private entities.

"I suppose you could do that," Mr. Kaplan replied, "but I don't know
how you would draw the line."

The Court is expected to hand down its decision in the case early
next year.

In other action last week, the Court agreed to decide whether the
amount of a portion of the legal fees charged to the state of Missouri
in the Kansas City school-desegregation case was calculated
properly.

In Missouri v. Jenkins (No. 88-64), the state contends that lower
federal courts should have ruled that paralegal and law-clerk expenses
awarded to the black plaintiffs in the case should have been assessed
at actual cost. The courts ruled that the paralegals and clerks should
be compensated at market rates.

Also, the Court heard arguments in Goldberg v. Sweet (No. 87-826), a
case that could have financial implications for public schools in
Illinois.

The case questions the constitutionality of the state's 5 percent
tax on out-of-state telephone calls. Revenues from the tax are
earmarked for education.

A decision in the case is expected early next year.

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